Rights children accrued in 2012 referendum ‘not being vindicated’

The Government must provide adequate funding and resources so that children’s constitutional rights to be heard in family law cases can be vindicated, a High Court judge has said.

Mr Justice Michael White, addressing the Legal Aid Board’s annual conference on Thursday on the theme of reform of the family justice system, said governments had not delivered the necessary resources to vindicate the rights children accrued in the 2012 referendum.

He said legislation to establish a “distinct and separate system of family courts to streamline family law processes and make them more efficient and less costly” was likely to be published in the next six to eight months.

“Ongoing engagement with the Department has been a somewhat tortuous process,” he said. “It has been difficult to get it over the line. I’m hopeful that a Bill will be published in the next six to eight months.

“When you legislate for major reform, you have to take into account the financial element. Legislators must appreciate that if they engage in major legislative reform, the financial resources to implement it must be available to those responsible for it.

“We had a children’s referendum, which gave effect to the voice of the child and a major piece of family law legislation.

“Our legislators passed it as a non-money bill. That caused huge frustration because the judiciary was expected to give effect to the voice of the child in family court proceedings, but with no tools with which to do it.”

Circuit Court judge Kathryn Hutton told the conference that legal representation in family law cases was means-tested, and that litigators routinely go unrepresented.

“Access to justice is recognised as a fundamental right in a democratic system, and failure to vindicate that right to a daily occurrence in the family law court in the form of unrepresented litigants,” she said.

District Court judge Gerard Furlong said “more bodies” were needed on the bench in order to clear backlogs of cases. “Everyone deserves a full and absolutely fair hearing,” he said.

“The new legislation is very welcome, but we do need the resources. It’s not just judicial resources. The child has a constitutional right to be heard.

“Interviewing children is fraught with difficulties. We can’t be a jack of all trades. We need experts who know and can keep up to date with proper methods of engaging with children.”

Speaking later, Keith Walsh, a solicitor and the chair of the Law Society’s child and family law committee, said the Government was promising a “Rolls Royce system of justice”, but not delivering the resources to realise it.

“My own view on the changes is that legislation or new systems are rushed through the Oireachtas without the necessary resources to support them,” he said.

“It is a bit of a nonsense to have a Rolls-Royce system of justice in theory but a Honda 50 type system of funding. This will require significant resources that are severely lacking at the moment. It leads to huge delays and frustrations for the users of the system.”